Biden administration targets conscience protections

Nuns who objected to certain medical procedures on religious grounds found some relief under the Trump administration. But President Joe Biden’s Department of Health and Human Services is reviving the pressure they faced during the Obama years. Health Secretary Xavier Becerra on Tuesday appealed to overturn a January ruling that protected doctors at Catholic hospitals and clinics run by the Religious Sisters of Mercy from having to participate in so-called gender transition procedures under the Affordable Care Act.

Luke Goodrich of Becket Fund noted that rules requiring participation violate medical professionals’ conscience rights, and there is a lack of medical consensus that sex reassignment surgery is an effective treatment for gender dysphoria: “This is bad for patients, doctors, and religious liberty.”

Citing the Religious Freedom Restoration Act, a federal court in  North Dakota had also ruled health insurance providers were not required to cover gender transition procedures under employee plans. Its decision joined another ruling from a Texas federal court in 2019 striking down the sex-change mandate. The agency previously appealed the Texas ruling, but on April 15 the appeals court returned the case to the district court to consider in light of substantial changes in the law.

Becerra faced a difficult confirmation process in part because in 2017 as California attorney general he filed a lawsuit against another order of nuns, the Little Sisters of the Poor. The case is pending before the 9th U.S. Circuit Court of Appeals, where the state is arguing the group should not receive a religious exemption from an Obama-era mandate forcing insurance providers to provide contraceptives.

These requirements will likely end up at the Supreme Court eventually, where they face an uphill battle. The justices in July 2020 struck down a similar Obama-era contraception mandate. The decision relied on a Trump administration rule exempting employers with conscience objections from providing contraception coverage. But in his concurring opinion, Justice Samuel Alito offered the Religious Freedom Restoration Act as a protection for healthcare workers’ conscience rights.